Citation Nr: 0812543
Decision Date: 04/15/08 Archive Date: 05/01/08
DOCKET NO. 03-16 910 ) DATE
)
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On appeal from the
Department of Veterans Affairs Regional Office in Lincoln,
Nebraska
THE ISSUES
1. Entitlement to an initial evaluation in excess of 50
percent for post-traumatic stress disorder (PTSD), prior to
October 11, 2004.
2. Entitlement to an evaluation in excess of 50 percent for
PTSD from December 1, 2004.
3. Entitlement to a total disability rating based on
individual unemployability due to service-connected
disabilities (TDIU).
REPRESENTATION
Appellant represented by: Antonio E. Bendezu, Attorney
ATTORNEY FOR THE BOARD
Christine C. Kung, Associate Counsel
INTRODUCTION
The veteran served on active duty from February 1985 to March
1989.
This matter comes on appeal before the Board of Veterans'
Appeals (Board) from April 2003 and August 2005 rating
decisions of the Department of Veterans Affairs (VA) Regional
Office in Lincoln, Nebraska (RO).
The April 2003 rating decision granted service connection for
PTSD and assigned a 50 percent evaluation, effective February
7, 2003. The August 2005 rating decision (1) granted a
temporary evaluation of 100 percent for a hospitalization
over 21 days, effective from October 11, 2004; (2) assigned a
50 percent evaluation for PTSD from December 1, 2004; and (3)
denied a claim of entitlement to TDIU.
In a February 2004 decision, the Board affirmed the RO's
April 2003 denial. The veteran appealed that decision to the
United States Court of Appeals for Veterans Claims (Court or
CAVC). In May 2006, the Court vacated that Board's decision
and remanded the case to the Board for readjudication
consistent with the May 2006 Court order. The Board remanded
the case to the RO for further development in October 2007.
Development has been completed and the case is once again
before the Board for review.
FINDINGS OF FACT
1. The RO has notified the veteran of the evidence needed to
substantiate her claim, and has obtained and fully developed
all evidence necessary for the equitable disposition of the
claim.
2. Prior to October 11, 2004 and from December 1, 2004, the
veteran's PTSD has been shown to result in occupational and
social impairment, with deficiencies in most areas, such as
work, family relations, judgment, thinking, or mood, due to
symptoms such as suicidal ideation; near-continuous panic or
depression affecting the ability to function independently,
appropriately, and effectively; impaired impulse control;
difficulty in adapting to stressful circumstances; an
inability to establish and maintain effective relationships.
3. The veteran's service-connected disabilities preclude her
from securing and following substantially gainful employment.
CONCLUSIONS OF LAW
1. Prior to October 11, 2004 and from December 1, 2004, the
criteria for a 70 percent evaluation for PTSD have been met.
38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002 & Supp.
2006); 38 C.F.R. §§ 4.1- 4.14, 4.125-4.130, Diagnostic Code
9411 (2007).
2. The criteria for a total disability rating based on
individual unemployability due to service-connected
disabilities have been met. 38 U.S.C.A. §§ 1155, 5100, 5102,
5103, 5103A, 5106, 5107 (West 2002); 38 C.F.R. §§ 3.102,
3.159, 3.321, 3.340, 3.341, 4.16 (2007).
REASONS AND BASES FOR FINDINGS AND CONCLUSIONS
A. Veterans Claims Assistance Act of 2000 (VCAA)
The Board finds that VA has met all statutory and regulatory
VCAA notice and duty to assist requirements. See 38 U.S.C.A.
§§ 5103(a), 5103A (West 2002); 38 C.F.R. § 3.159 (2007);
Quartuccio v. Principi, 16 Vet. App. 183 (2002). A February
2003 VCAA notice letter addressed the veteran's initial claim
for service connection for PTSD. An October 2004 VCAA notice
letter addressed the veteran's claim of entitlement to TDIU.
Pursuant to an October 2007 Board remand, the RO issued
corrective VCAA notice in November 2007. The November 2007
notice letter informed the veteran of the evidence necessary
to substantiate her claims, evidence VA would reasonably seek
to obtain, information and evidence for which the veteran was
responsible, and also asked the veteran to provide any
evidence that pertains to her claim. The November 2007 VCAA
letter provided the veteran with notice of the type of
evidence necessary to establish a disability rating and
effective date and provided notice of the information and
evidence necessary to substantiate an increased-compensation
claim, including general notice of the relevant criteria
necessary for entitlement to a higher disability under
applicable Diagnostic Codes. See Dingess/Hartman v.
Nicholson, 19 Vet. App. 473 (2006); Vazquez-Flores v. Peake,
22 Vet. App. 37 (2008).
The November 2007 notice was not received prior to the
initial rating decision. Despite the inadequate timing of
this notice, the Board finds no prejudice to the veteran in
proceeding with the issuance of a final decision. See
Pelegrini v. Principi, 18 Vet. App. 112 (2004); Quartuccio v.
Principi, 16 Vet. App. 183 (2002). The RO cured any VCAA
notice deficiency by issuing the fully compliant VCAA notice.
The RO readjudicated the case in a January 2008 supplemental
statement of the case. See Mayfield v. Nicholson, 444 F.3d
1328 (Fed. Cir. 2006) (where notice was not provided prior to
the AOJ's initial adjudication, this timing problem can be
cured by the Board remanding for the issuance of a VCAA
notice followed by readjudication of the claim by the AOJ);
see also Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006)
(the issuance of a fully compliant VCAA notification followed
by readjudication of the claim, such as an SOC or SSOC, is
sufficient to cure a timing defect). There is no indication
that any notice deficiency affects the outcome of this case.
The veteran's VA and private treatment records and VA
examinations have been associated with the claims file. VA
has provided the veteran with every opportunity to submit
evidence and arguments in support of her claim, and to
respond to VA notices. The veteran and her representative
have not made the Board aware of any additional evidence that
needs to be obtained prior to appellate review. The record
is complete and the case is ready for review.
B. Background and Evidence
VA and private mental status examinations, dated from 2002 to
2007, show that the veteran's PTSD symptoms include chronic
depression, anxiety, suicidal ideation, sleep disturbance.
The veteran was oriented in all three spheres; grooming and
hygiene were fair; and she denied homicidal ideation,
delusions, and hallucinations.
The veteran has been followed at VA for PTSD. A July 2002
treatment report reflects minor depression. She was seen in
August 2002, reporting that she felt "down and out." During
a September 2002 examination, the veteran complained of
flashbacks since the 9/11 attack. She was diagnosed with an
adjustment reaction.
The veteran underwent an extensive psychological evaluation
by M.C., Ph.D., in December 2002. The veteran lived with her
husband and three children and worked cleaning pots and pans
at a VA medical center. Her symptoms included fear of crowds
and poor temper control at home and at work. The veteran
said she did not do anything outside of the home to have "a
good time" and that she was busy with raising her children
and attempting to be a good wife. The psychologist indicated
that the veteran appeared to go through life with a
concretely moderately-severe restriction in her lifestyle and
that it was obvious she was between severe and profound
levels in her ability to follow a daily routine or attend to
personal habits. A mental status examination shows that flow
of conversation and thought were appropriate, although at
times her voice became too low in volume. The veteran had a
penchant toward circumstantial speech. Her affect and mood
were depressed, dysphoric, and almost despondent. She
displayed mixed anxiety when discussing how she was treated
in service when she reported the sexual assault. She was
non-compulsive. The veteran's ability to cope with stress
was extremely poor, suggestive of a mild personality
disorder. Social comprehension was fair, abstract ability
was poor, calculation skills were poor, and recall was below
fair. The psychologist commented that the veteran was a
reclusive individual where her community was concerned.
The veteran was diagnosed with chronic PTSD and dysthymic
disorder with a Global Assessment of Functioning (GAF) score
of 43. The psychologist opined that the veteran was an
individual who either could not work or could only work at a
menial job. He explained that the veteran was working
somewhat beneath her ability and that there was little else
she could do because of her difficulty with concentration,
memory, problems in governing her own emotions, especially
while under stress, and her difficulty relating to others.
The psychologist concluded that the veteran's ability to
compete in usual gainful employment was extremely
questionable and that he did not know how long she would be
able to keep her current job washing pots and pans if she
continued to behave as she did in his office.
During a January 2003 VA PTSD consultation, the veteran
reported increased depression. She displayed no psychomotor
abnormalities, rigidity, or tremors during her mental status
examination. Her affect was of normal range and intensity.
Her mood was depressed, although she had stated that it had
improved considerably. Her speech was fluent and
spontaneous. There was no evidence of any circumstantiality
or tangeniality. The veteran reported problems with short-
term memory but no problem with long-term memory. Cognitive
testing revealed no deficits. Her diagnoses included PTSD
secondary to military sexual trauma; major depressive
disorder, recurrent; and panic disorder with agoraphobia, in
partial remission. She was assessed with a GAF score of 52.
A January 2003 VA treatment report noted that the veteran no
longer experienced nightmares or sleep disturbance. Her
obsessive behavior involving overeating was discussed. She
was diagnosed with PTSD, and was assigned a GAF score of 55.
A mental status examination completed in September 2003 noted
that the veteran had some problems with her working memory
and concentration. She was assessed with PTSD; depressive
disorder; panic disorder with agoraphobia in partial
remission; impulse control disorder; and alcohol dependence
and polysubstance abuse, both in full remission, and had a
GAF of score of 53.
VA treatment reports from February 2004 to July 2004 show
that the veteran was attending therapy sessions with her ex-
husband; they had filed for a divorce in April 2004. In a
March 2004 VA treatment report, the clinician opined that the
veteran had occupational and social impairment in most areas
such as work, family relations, judgment, thinking, and mood.
She stated that the veteran numbed her body most of the time
so that she didn't feel or lose control. She stated that the
veteran was still cutting on [injuring] herself, which was a
danger to herself. She disassociated at numerous times
during the day. In therapy, if she didn't like what was
being talked about, she manipulated and changed the subject.
A June 2004 note reflects a GAF score of 50. VA treatment
reports from August 2004 to September 2004, shortly after the
veteran's divorce, reflect GAF scores of 45, 48, and 55.
From October 2004 to November 2004, the veteran was admitted
to a sexual trauma treatment group therapy program at VA; she
was in receipt of a temporary total disability rating at this
time.
VA psychiatric evaluations dated from February 2005 to April
2005 show that the veteran continued to receive treatment at
VA for PTSD. A February 2005 social work note shows that the
veteran was recently hired at VA. She was seeking temporary
housing because her fiancé had relapsed to drugs and it was
not safe in her house.
During a February 2005 VA psychiatric outpatient evaluation,
the veteran admitted to a previous suicide attempt shortly
after the rape, but denied any other suicide attempts. She
had occasional thoughts of self injury, but had promised her
children that she would never commit suicide. She had a
history of cutting herself on the arms and ankles, though she
stated that she had not done this in many years. The veteran
drank occasionally. She admitted to a recent binging episode
after her fiancé had a relapse of drug use. She denied
repetitive behaviors or rituals. She denied a history of
psychiatric hospitalizations. She divorced from her husband
of 16 years in 2002 after disclosing the details of her rape
to him. Her ex-husband had custody of the children. She
recently moved to participate in a sexual trauma treatment
program. While enrolled, she met her current fiancé who was
a resident of the domiciliary. The veteran was employed at
VA until November 2004. She was rehired to fill the same
position at the Bay Pines VA in Florida. A mental status
examination shows that the veteran displayed poor posture and
appeared fidgety throughout the interview, continually moving
her legs. Her voice was loud and shaky at times with
context, but was otherwise normal. The veteran had a full
range of affect with occasional anxious laughter. Thought
process was organized without looseness of association,
flight of ideas, circumstantiality, or tangentially. She
denied suicidal ideation. The veteran was cognitively
intact. Insight was superficial, judgment was adequate. The
veteran was diagnosed with PTSD and major depressive
disorder. She was assigned a GAF score of 62. An April 2005
note reflects similar findings on mental status examination.
The psychiatrist noted that the veteran was working at Perry
Point at that time. The veteran had a GAF of 62.
The claims file was reviewed in conjunction with a June 2005
VA examination. It was noted that since her last evaluation,
the veteran had presented to the sexual trauma program in St.
Petersburg. She had continued episodes of significant
nightmares, impaired sleep, flashbacks, and prominent
irritability. The veteran reported increased panic attacks.
She had suicidal ideation 10 to 14 times a month, but had no
recent cutting behavior, self-mutilating behavior, or
admissions to psychiatric unit other than the sexual trauma
program scheduled admission. She had a relationship;
although she said her eight-month relationship was coming to
an end at the first of the month. There was no recent
psychosis. She still had prominent depression affecting her
sleep, energy and concentration. The veteran had been
followed at VA and was treated for PTSD with Depakote,
Citalopram, and Toprol or Verapamil, suggesting fairly
aggressive treatment. She appeared fairly compliant, with no
behavioral outbursts. She had some significant symptoms
remaining. At the time of the examination, the veteran was
able to maintain her activities of daily living, care for
herself, and was working a 40-hour work week in the kitchen.
She lived with her boyfriend of eight months, but reported
that she did very little in the way of fun.
A mental status examination reflects no impairment in thought
process or communication. The veteran did have moderate
psychomotor agitation associated with prominent hyperarousal
and did have some suicidal ideations, but no intent or plan.
Speech, rate, and flow were within normal limits. Mood was
described as down and anxious. Affect was congruent and
liable. Impulse control appeared impaired. Sleep was
reported as bad, impairing life through fatigue. The
examiner concluded that the veteran did have significant
PTSD, possible slight worsening in the context of some more
recovery work during the sexual trauma treatment program.
The examiner stated that she was still able to work a 40-hour
work week, although she was somewhat diminished from where
she should be. She was able to form and engage in new
relationships. She also appeared able to manage and function
in her best interests and maintained her activities of daily
living. The veteran was assessed with PTSD with a GAF score
of 50. The examiner stated that the veteran's overall
symptoms did not appear to be markedly more severe than they
were during her last rating examination.
VA treatment records from July 2005 to May 2006 reflect
treatment for PTSD, with both group therapy and individual
therapy. The veteran had moved back to Nebraska at that
time. VA treatment records indicate that the veteran was no
longer working at that time. Mental status examinations show
that her mood and affect varied. Her speech was relevant and
spontaneous, thought processes were logical and goal-
directed, thought content was relevant, and insight was
adequate. The veteran had GAF scores ranging from 50 to 57.
September 2005 treatment notes show that the veteran was
homeless at that time. An October 2005 VA treatment note
shows that the veteran was unemployed. She reported to the
clinician that her psychiatrist did not understand why she
only received a 50 percent evaluation. The veteran believed
that it was because she was holding a steady job at the time
of her evaluation. The veteran reported being written up
three times in Bay Pines for missing too much work, even if
it was due to appointments at the VA.
The veteran submitted an April 2006 psychological evaluation
completed by M.C., Ph.D. He provided a lengthy evaluation,
which is summarized below. During examination, the veteran
was disheveled but relatively clean. She was divorced; her
ex-husband cared for the children because she reportedly did
not have a stable home. The veteran stated that she was
homeless for ten months, though she did not elaborate.
Thereafter, she was hospitalized at VA. At the time of the
examination, the veteran was living by herself. She had
suicidal ideation. The psychologist stated that during a
mental status examination, flow of conversation and thought
were characterized by the veteran being over elaborative and
circumstantial. Flight of ideals occurred consistently.
Affect and mood were seriously depressed. The psychologist
also noted mixed anxiety and general anxious features, and
depressive features. He stated that cognition had
deteriorated markedly, indicating that the veteran was
restless and shook. She was below fair in her fund of
general information, and immediate recall was poor. Insight
was fair, and judgment was poor. The veteran was assessed
with PTSD, major depression, and adjustment disorder with
anxiety. She was assessed with a GAF score of 39/40.
The psychologist concluded that the veteran was a middle aged
woman who was haggard appearing and lived literally from hand
to mouth. He indicated that the veteran had amotivational
and disorganized feelings and thinking due to severe
depression. The veteran did not follow any established
routine in her personal life, and had difficulties with
sleeping, eating, emoting, and with vocational attempts. The
psychologist indicated that PTSD interfered with her general
concentration and attentiveness. He opined that the veteran
was completely incapable of gainful employment based on her
inability to carry out even simple instructions, even when
they involved self-help hygiene skills. Her immediate recall
would not allow her to carry out simple one and two step
directions in a competitive setting. Furthermore, the
examiner stated that the veteran was totally incapable of
governing her emotions even under ordinary stress. Her
amotivational behavior extended to her social responses to
others and the examiner indicated that her suspiciousness and
hypervigilence would interfere with her ability to work with
others.
The claims file was reviewed in conjunction with an August
2006 VA examination. The veteran was divorced. She reported
that her three children spent part of the time with the
veteran and part of the time with their father. She had
family who lived in the area. She saw her mother and brother
a few times per month. The veteran was involved in football
the past year, and her daughter was in volleyball. She
attended games and knew most of the people. She stated that
she stayed out on the edge, and when she couldn't breathe,
she just left. She indicated that she would talk with others
on the internet, and preferred not to see her friends in
person. She stated that she was in a women's group and that
the members were aware of her triggers. She liked to read
and play games on the internet.
The veteran had attempted suicide a few years prior, after
her divorce. The examiner indicated that she had a history
of violence and assaultiveness. The veteran was markedly
hypervigilant during her mental status examination. She was
very watchful, almost to the point of looking suspicious.
Her speech was clear. She was tense, guarded, and had
moderate severe restriction of affect. Her mood was anxious.
She had circumstantiality of thought process. Thought
content was unremarkable. There was no inappropriate
behavior. She did not have obsessive or ritualistic behavior
or panic attacks. She did have suicidal thoughts but was not
an imminent danger to herself or others. Impulse control was
fair. The veteran was able to maintain minimum personal
hygiene. She had some problems with activities of daily
living, including moderate problems with doing household
chores, shopping, and driving, and severe problems with
engaging in sports or exercise, traveling, and other
recreational activity. Recent and remote memory were normal.
Her PTSD symptoms included markedly diminished interest or
participation in significant activities, feeling of
detachment or estrangement from others, restricted range of
affect, a sense of foreshortened future, sleep difficulty,
irritability or outbursts of anger, and difficulty
concentrating. Her symptoms were noted to be chronic. The
examiner stated that the veteran had severe avoidance
behaviors and was isolating herself to her home. Her affect
was moderate severely constricted as she did not smile, laugh
or cry. She was estranged from others and isolated to a
fairly significant level. She had internet friends mainly,
with some interaction with first degree relatives a few times
a month. Her hobbies and interests were solitary and not
social. The veteran had poor sleep, slight to mild
irritability, her concentration was distracted, and she had
increased startle reactions around people. The examiner
indicated that her PTSD symptoms had increased in severity
and that her PTSD was moderately severe in nature at that
time. The veteran had been unemployed for two years. She
was previously employed at the VA for a total of three years.
She stated that being at VA was a positive occupation as when
she would decompensate at work she would be able to have
mental health intervention on site. The veteran left for an
in-patient hospitalization at VA and had not been gainfully
employed since that time.
The veteran was assessed with PTSD with a GAF score of 50.
The examiner indicated that the veteran was likely exhibiting
an increase in her PTSD. He opined that the veteran did not
have total occupational and social impairment due to PTSD
signs and symptoms. PTSD symptoms did result in deficiencies
in judgment, thinking, family relations, work, and mood. The
veteran's PTSD symptoms and triggers led to significant
social problems. When attending social events for her
children, she would leave the situation and let her ex-
husband tend to the children. Her thought process was
circumstantial to a fairly significant level. She had
passive suicidal ideation at the time of the examination due
to the stress of the examination. She had moderately severe
problems with family relations, for social events with her
children, interaction with her children, and interaction with
family. Affect was moderately severely restricted with
little reciprocation of nonverbal and verbal interpersonal
communication. The veteran was avoidant of social places,
including a work environment due to avoidance of triggers,
and this was noted to be moderately severe. The veteran's
mood was continuously anxious during the week due to PTSD
symptoms, and this was also moderately severe. The veteran
had reduced reliability and productivity due to her PTSD
symptoms. Reliably was rated as poor due to frequent
avoidance behaviors and she had moderately severe
deficiencies in productivity.
VA treatment records dated from August 2006 to December 2007
show that the continued to exhibit symptoms of depression and
anxiety. The veteran had GAF scores ranging from 50 to 52.
An October 2007 note shows that the veteran's psychiatric
problems were unchanged. Her mental status examination at
that time also reflects psychomotor agitation and suicidal
ideation.
C. Law and Analysis
1. PTSD
Disability ratings are determined by applying the criteria
set forth in VA's Schedule for Rating Disabilities. The
percentage ratings are based on the average impairment of
earning capacity and individual disabilities are assigned
separate diagnostic codes. 38 U.S.C.A. § 1155 (West 2002);
38 C.F.R. § 4.1 (2007). If two evaluations are potentially
applicable, the higher evaluation will be assigned if the
disability picture more nearly approximates the criteria
required for that evaluation; otherwise, the lower rating
will be assigned. 38 C.F.R. § 4.7 (2007). Any reasonable
doubt regarding a degree of disability will be resolved in
favor of the veteran. 38 C.F.R. § 4.3 (2007).
VA must assess the level of disability from the date of
initial application for service connection and determine
whether the level of disability warrants the assignment of
different disability ratings at different times over the life
of the claim, a practice known as a "staged rating." See
Fenderson v. West, 12 Vet. App 119 (1999).
The CAVC has held that staged ratings are appropriate for an
increased rating claim when the factual findings show
distinct time periods where the service-connected disability
exhibits symptoms that would warrant different ratings. Hart
v. Mansfield, No. 05-2424, 2007 WL 4098218 (U.S. Vet. App.
Nov. 19, 2007). The relevant temporal focus for adjudicating
an increased rating claim is on the evidence concerning the
state of the disability from the time period one year before
the claim was filed until VA makes a final decision on the
claim. Id. The Board has considered whether a staged rating
is for consideration. Because the veteran was in receipt of
a temporary evaluation of 100 percent from October 11, 2004
to November 30, 2004, the Board will evaluate the level of
disability both prior to October 11, 2004 and from December
1, 2004.
The veteran is currently assigned a 50 percent disability
rating for PTSD under the provisions of 38 C.F.R. § 4.130,
Diagnostic Code 9400, 9411 (2007). A 50 percent rating is
assigned for occupational and social impairment with reduced
reliability and productivity due to such symptoms as:
flattened affect; circumstantial, circumlocutory, or
stereotyped, speech; panic attacks more than once a week;
difficulty in understanding complex commands; impairment of
short and long term memory (e.g., retention of only highly
learned material, forgetting to complete tasks); impaired
judgment; impaired abstract thinking; disturbances of
motivation and mood; and difficulty in establishing and
maintaining effective work and social relationships. Id.
A 70 percent disability rating is assigned for occupational
and social impairment, with deficiencies in most areas, such
as work, school, family relations, judgment, thinking, or
mood, due to such symptoms as: suicidal ideation; obsessional
rituals which interfere with routine activities; speech that
is intermittently illogical, obscure, or irrelevant; near-
continuous panic or depression affecting the ability to
function independently, appropriately, and effectively;
impaired impulse control (such as unprovoked irritability
with periods of violence); spatial disorientation; neglect of
personal appearance and hygiene; difficulty in adapting to
stressful circumstances (including work or a worklike
setting); and inability to establish and maintain effective
relationships. Id.
A 100 percent disability rating is assigned total
occupational and social impairment, due to such symptoms as:
gross impairment in thought processes or communication;
persistent delusions or hallucinations; grossly inappropriate
behavior; persistent danger of hurting self or others;
intermittent inability to perform activities of daily living
(including maintenance of minimal personal hygiene);
disorientation to time or place; and memory loss for names of
close relatives, or for the veteran's own occupation or name.
Id.
In applying the above criteria, the Board notes that when it
is not possible to separate the effects of the service-
connected disability from a nonservice-connected disability,
such signs and symptoms shall be attributed to the service-
connected disability. See 38 C.F.R. § 3.102 (2007);
Mittleider v. West, 11 Vet. App. 181 (1998) citing Mitchem v.
Brown, 9 Vet. App. 136, 140 (1996) (the Board is precluded
from differentiating between symptomatology attributed to a
nonservice-connected disability and a service-connected
disability in the absence of medical evidence which does so.)
In determining the level of impairment under 38 C.F.R. §
4.130, a rating specialist is not restricted to the symptoms
provided under the diagnostic code, and should consider all
symptoms which affect occupational and social impairment,
including those identified in the DIAGNOSTIC AND STATISTICAL
MANUAL OF MENTAL DISORDERS (4th ed. 1994) (hereinafter DSM-IV).
See Mauerhan v. Principi, 16 Vet. App. 436 (2002). If the
evidence demonstrates that a claimant suffers symptoms or
effects that cause an occupational or social impairment
equivalent to those listed in that diagnostic code, the
appropriate, equivalent rating is assigned. Id.
Within the DSM-IV, Global Assessment Functioning (GAF) scores
ranging from 1 to 100, reflect "psychological, social, and
occupational functioning on a hypothetical continuum of
mental health-illness." Carpenter v. Brown, 8 Vet. App.
240, 242 (1995); See also Richard v. Brown, 9 Vet. App. 266,
267 (1996). GAF scores from 71 to 80 reflect transient
symptoms, if present, and expectable reactions to
psychosocial stressors (e.g., difficulty concentrating after
family arguments); resulting in no more than slight
impairment in social, occupational, or school functioning
(e.g., temporarily falling behind school work). DSM-IV at
46-47. GAF scores from 61 to 70 reflect some mild symptoms
(e.g., depressed mood and mild insomnia) or some difficulty
in social, occupational, or school functioning (e.g.,
occasional truancy, or theft within the household), but
generally functioning pretty well, with some meaningful
interpersonal relationships. Id. Scores ranging from 51 to
60 reflect moderate symptoms (e.g., flat affect and
circumstantial speech, occasional panic attacks) or moderate
difficulty in social, occupational, or school functioning
(e.g., few friends, conflicts with peers or co- workers).
Id. Scores ranging from 41 to 50 reflect serious symptoms
(e.g., suicidal ideation, severe obsessional rituals,
frequent shoplifting) or any serious impairment in social,
occupational or school functioning (e.g., no friends,
inability to keep a job). Id. Scores ranging from 31 to 40
reflect some impairment in reality testing or communication
(e.g., speech which is at times illogical, obscure, or
irrelevant) or major impairment in several areas such as work
or school, family relations, judgment, thinking, or mood
(e.g., a depressed patient who avoids friends, neglects
family, and is unable to do work). Id.
Prior to October 11, 2004 and from December 1, 2004, Board
finds that the veteran's overall disability picture is most
consistent with a 70 percent rating for PTSD. See 38 C.F.R.
§ 4.130. Diagnostic Code 9411 (2007). The record shows that
veteran's PTSD symptoms have gradually increased in severity
and now result in occupational and social impairment, with
deficiencies in most areas, such as work, family relations,
judgment, and mood.
Prior to October 11, 2004, the veteran's exhibited
symptomatology described for both 50 percent and 70 percent
evaluations. However, her symptomatology is shown to have
increased in severity during this time, and the Board finds
that prior to October 11, 2004, the veteran's PTSD more
closely resembles the criteria described for a 70 percent
evaluation.
Prior to October 11, 2004, the veteran has exhibited
symptomatology described for a 70 percent evaluation, such as
circumstantial speech, near-continuous depression or panic,
impaired impulse control, and difficulty in adapting to
stressful circumstances. A December 2002 private evaluation
shows that the veteran had moderately-severe restriction in
her lifestyle, severe to profound deficiency in her ability
to follow a daily routine or attend to personal habits,
circumstantial speech, depressed mood, anxiety, poor ability
to cope with stress, poor recall, and was reclusive. A
January 2003 VA PTSD consultation reflects depressed mood and
problems with short-term memory. VA treatment reports from
January 2003 to September 2004 show an increase in the
severity of the veteran's PTSD symptoms, particularly from
August 2004 to September 2004, after the veteran's divorce.
A September 2003 note reflects problems with memory and
concentration, and additional diagnoses of depressive
disorder, panic disorder, and impulse control disorder. In a
March 2003 note, the VA clinician opined that the veteran had
occupational and social impairment in most areas such as
work, family relations, judgment, thinking, and mood. The
veteran was still cutting and injuring herself and
disassociated at numerous times during the day.
The veteran's GAF scores, prior to October 11, 2004, ranged
from 43 to 55 on VA treatment records and examinations and on
a private evaluation. Her GAF scores reflect moderate to
serious symptoms and moderate difficulty in social or
occupational functioning to any serious impairment in social,
occupational or school functioning. See DSM-IV at 46-47.
The Board finds that a 70 percent evaluation is warranted for
PTSD prior to October 11, 2004.
From December 1, 2004, the veteran continued to exhibited
symptoms described for a 70 percent evaluation, including
suicidal ideation; near-continuous panic or depression
affecting the ability to function independently,
appropriately, and effectively; impaired impulse control;
neglect of personal appearance and hygiene; and difficulty in
adapting to stressful circumstances (including work or a
worklike setting).
A June 2005 VA examination reflects suicidal ideations,
depression, anxiety, impaired impulse control, and a
diagnosis of significant PTSD, with possible slight
worsening. The examiner noted that the veteran was able to
form and engage in new relationships and stated that the
veteran's overall symptoms did not appear to be markedly more
severe than they were during her last rating examination.
Mental status examinations completed in 2006, however,
reflect more severe symptomatology.
An April 2006 psychological evaluation completed by M.C.,
Ph.D. reflects circumstantial speech, flight of ideas,
depressed mood and affect, anxiousness, and deterioration in
cognition, and poor immediate recall and judgment. An August
2006 VA examination reflects an attempted suicide a few years
prior. The veteran was markedly hypervigilant, had
circumstantiality of thought process, suicidal thoughts, and
some problems with activities of daily living. Her PTSD
symptoms included markedly diminished interest or
participation in significant activities, feeling of
detachment or estrangement from others, restricted range of
affect, a sense of foreshortened future, sleep difficulty,
irritability or outbursts of anger, and difficulty
concentrating. The examiner stated that the veteran had
severe avoidance behaviors, was estranged from others, and
isolated to a fairly significant level. The examiner
indicated that her PTSD symptoms had increased in severity
and that her PTSD was moderately severe in nature at that
time. The examiner opined that PTSD did result in
deficiencies in judgment, thinking, family relations, work,
and mood.
The preponderance of the evidence shows that from December 1,
2004, the veteran has a GAF score around 50, reflecting
serious symptoms or any serious impairment in social,
occupational or school functioning. See DSM-IV at 46-47. VA
treatment records dated from February 2005 to December 2007
reflect GAF scores ranging from 50 to 62; June 2005 and
August 2006 VA examinations reflect a GAF score of 50; and
M.C., Ph.D., assigned a GAF score of 39/40 during his April
2006 evaluation. The veteran's GAF score of 39/40 assigned
by M.C., Ph.D. reflects some impairment in reality testing or
communication or major impairment in several areas such as
work, family relations, judgment, thinking, or mood. The
Board notes that the veteran did not exhibit impairment in
reality testing or communication on examination. She has,
however, been shown to have major impairment in areas such as
work, family relations, judgment thinking and mood. The
veteran's GAF scores are consistent with her symptomatology
and remain consistent with a 70 percent disability rating for
PTSD.
The Board finds that prior to October 11, 2004 and from
December 1, 2004, a higher 100 percent evaluation is not
warranted where the veteran has not been shown to exhibit
symptoms such as gross impairment in thought processes or
communication; persistent delusions or hallucinations;
grossly inappropriate behavior; persistent danger of hurting
self or others; intermittent inability to perform activities
of daily living (including maintenance of minimal personal
hygiene); disorientation to time or place; and memory loss,
to warrant a 100 percent evaluation. See 38 C.F.R. § 4.130,
Diagnostic Code 9411 (2007).
Although M.C., Ph.D. opined in a December 2002 report that
the veteran was an individual who either could not work or
could only work at a menial job, at the time of the
examination, the veteran was employed at VA and maintained
full time employment at VA until her October 2004
hospitalization, and had resumed work thereafter. February
2005 and April 2005 VA psychiatric evaluations show that the
veteran was employed at VA until her hospitalization and was
subsequently hired to fill the same position at Bay Pines VA.
At the time of the June 2005 VA examination, the veteran was
able to maintain her activities of daily living, care for
herself, and was working a 40 hour work week in the kitchen.
The veteran was unemployed at the time of the August 2006 VA
examination. The examiner opined, however, that the veteran
did not have total occupational and social impairment to do
PTSD signs and symptoms.
M.C., Ph.D. indicated in his April 2006 evaluation that the
veteran was completely incapable of gainful employment based
on her inability to carry out even simple instructions, even
when they involved self-help hygiene skills. However, the
June 2005 VA examiner had stated that the veteran was still
able to work a 40-hour work week and the August 2006 VA
examiner opined that the veteran did not have total
occupational and social impairment due to PTSD signs and
symptoms. VA treatment records did not indicate problems
with maintaining hygiene and self-care.
According to CAVC, "the probative value of medical opinion
evidence is based on the medical expert's personal
examination of the patient, the physician's knowledge and
skill in analyzing the data, and the medical conclusion the
physician reaches." Guerrieri v. Brown, 4 Vet. App. 467,
470 (1993). The credibility and weight to be attached to
these opinions is within the province of the Board. Id. In
this case, the Board finds that the opinions rendered by the
both VA examiners and M.C., Ph.D. are probative in
determining the severity of the veteran's PTSD. However, the
opinions and GAF scores assigned by M.C., Ph.D. reflect more
severe symptomatology than supported by VA psychiatric
treatment reports. The Board notes in particular that the
veteran had been followed at VA for several years for her
PTSD treatment. The Board finds that the preponderance of
the evidence does not support a 100 percent evaluation for
PTSD in this case. The veteran's symptomatology and
disability picture more closely resembles that described for
a 70 percent evaluation.
The Board has also considered the potential application of
other various provisions, including 38 C.F.R. § 3.321(b)(1),
for exceptional cases where schedular evaluations are found
to be inadequate. See Schafrath v. Derwinski, 1 Vet. App.
589 (1991). However, the veteran's disability has not been
shown to cause marked interference with employment beyond
that contemplated by the Schedule for Rating Disabilities,
has not necessitated frequent periods of hospitalization, and
has not otherwise rendered impractical the application of the
regular schedular standards utilized to evaluate the severity
of the disability. Thus, the Board finds that the
requirements for referral for an extraschedular evaluation
under 38 C.F.R. § 3.321(b)(1) have not been met. Bagwell v.
Brown, 9 Vet. App. 337 (1996); Shipwash v. Brown, 8 Vet. App.
218 (1995).
2. TDIU
TDIU ratings may be assigned where the schedular rating is
less than total, when it is found that the disabled person is
unable to secure or follow a substantially gainful occupation
as a result of a single service-connected disability ratable
at 60 percent or more, or as a result of two or more
disabilities, provided at least one disability is ratable at
40 percent or more and there is sufficient additional
service-connected disability to bring the combined rating to
70 percent or more. 38 C.F.R. §§ 3.340, 3.34l, 4.16(a)
(2007). However, even when the percentage requirements are
not met, entitlement to a total rating, on an extraschedular
basis, may nonetheless be granted, in exceptional cases, when
the veteran is unable to secure and follow a substantially
gainful occupation by reason of service-connected
disabilities. 38 C.F.R. §§ 3.321(b), 4.16(b) (2007).
In determining whether an individual is unemployable by
reason of service-connected disabilities, consideration must
be given to the type of employment for which the veteran
would be qualified. Such consideration would include
education and occupational experience. Age may not be
considered a factor. 38 C.F.R. § 3.341 (2007).
Unemployability associated with advancing age or intercurrent
disability may not be used as a basis for assignment of a
total disability rating. 38 C.F.R. § 4.19 (2007).
For a veteran to prevail on a total rating claim, the record
must reflect some factor which takes his or her case outside
of the norm. See Van Hoose v. Brown, 4 Vet. App. 361, 363
(1996); 38 C.F.R. §§ 4.1, 4.15 (2007). The sole fact that a
veteran is unemployed or has difficulty obtaining employment
is not enough. A high rating in itself is recognition that
the impairment makes it difficult to obtain and keep
employment. The question is whether the veteran is capable
of performing the physical and mental acts required by
employment, not whether the veteran can find employment. See
Van Hoose, supra, at 363; 38 C.F.R. § 4.16(a). The fact that
a veteran is unemployed is generally insufficient to
demonstrate that he is "unemployable" within the meaning of
pertinent VA laws and regulations. Instead, a longitudinal
review of all the evidence is necessary in order to obtain a
full understanding of the case. See Schafrath v. Derwinski,
1 Vet. App. 589 (1991).
Pursuant to the Board's decision this date, the veteran is
service connected for PTSD at 70 percent disabling.
Therefore, application of TDIU is appropriate in this case so
long as the severity of the veteran's disability warrants
such a rating. The veteran is currently unemployed. The
Board notes that the veteran appears to have worked full-time
for some period after submitting her TDIU claim, but the
dates are not apparent from the record.
The veteran was admitted to a sexual trauma treatment group
therapy program at VA from October 2004 to November 2004. VA
treatment records dated in February 2005 show that the
veteran was employed at VA until she entered treatment; she
was subsequently rehired to fill the same position at the Bay
Pines VA.
The veteran was working at the time of a June 2005 VA
examination. The examiner noted that the veteran was working
a 40-hour work week in the kitchen. He stated she was still
able to work a 40-hour work week, although she was somewhat
diminished from where she should be. VA treatment records
dated in June 2005, show that the veteran returned to
Nebraska. An October 2005 note shows that the veteran was
unemployed. She reported that she was written up three times
at the VA in Bay Pines due to missing too much work.
In an April 2006 psychiatric evaluation, M.C., Ph.D. stated
that the veteran was completely incapable of gainful
employment based on her inability to carry out even simple
instructions, her poor memory, her inability to govern her
emotions, and her amotivational behavior extended to her
social responses to others.
The veteran was unemployed at the time of the August 2006 VA
examination. The examiner opined, however, that the veteran
did not have total occupational and social impairment to do
PTSD signs and symptoms. Despite this opinion, the August
2006 examiner indicated that the veteran's PTSD symptoms had
increased in severity. At the time of examination, the
veteran stated that being at VA was a positive occupation,
however, she also indicated that it was because she had
mental health intervention on site when she would
decompensate at work. The examiner noted that the veteran
was avoidant of social places, including a work environment
due to avoidance of triggers, and this was noted to be
moderately severe. Reliably was rated as poor due to
frequent avoidance behaviors, the veteran was noted to have
moderately severe deficiencies in productivity.
In this case, a June 2005 and August 2006 VA examiners
indicate that the veteran was able to work and did not have
total occupational and social impairment due to PTSD signs
and symptoms, however, examinations also indicate moderately
severe symptomatology which would interfere with the
veteran's ability to maintain work. The veteran's private
psychologist has clearly opined that the veteran is
completely incapable of gainful employment. As noted in the
discussion above, the Board finds that both the VA and
private opinions are probative in this case. See Guerrieri
v. Brown, 4 Vet. App. 467, 470 (1993) (The probative value of
medical opinion evidence is based on the medical expert's
personal examination of the patient, the physician's
knowledge and skill in analyzing the data, and the medical
conclusion the physician reaches.). The Board finds that the
veteran's VA treatment records further support the conclusion
that the veteran is precluded from securing or following a
substantially gainful occupation. Although it appears that
the veteran was rehired after her hospitalization and was
able to work for some period of time, it appears from the
record that she was not able to maintain employment. The
veteran indicated in her October 2005 treatment report, that
she had difficulty maintaining employment due to multiple
absences at work. The Board finds that the veteran's lay
statements, made to treating physicians during the course of
her treatment, are credible. The veteran's private
psychologist has opined that she is incapable of gainful
employment due to her PTSD. The veteran's VA treatment
records, VA examinations, and private psychiatric evaluations
show that the veteran continues to be unemployed and
continues to have serious PTSD symptoms and serious
impairment in social and occupational functioning.
The preponderance of the evidence indicates that the veteran
is unable to work due to her service-connected PTSD.
Resolving the benefit of the doubt in favor of the veteran,
the Board finds that the veteran is unemployable based on the
nature and severity of her service-connected PTSD. See 38
U.S.C.A. § 5107(b) (West 2002); 38 C.F.R. §§ 4.3, 4.7 (2007).
Accordingly, a total disability rating based upon individual
unemployability due to service-connected disability is
warranted.
D. Conclusion
Prior to October 11, 2004 and from December 1, 2004, the
Board concludes that the evidence supports a 70 percent
rating for PTSD.
Competent medical evidence shows that the veteran's service-
connected disabilities preclude her from securing and
following substantially gainful employment. The criteria for
a total disability rating based on individual unemployability
due to service-connected disabilities have been met.
ORDER
Prior to October 11, 2004 and from December 1, 2004, a 70
percent rating, but no more, is granted for PTSD subject to
the law and regulations governing the payment of monetary
benefits.
Entitlement to a total disability rating based on individual
unemployability due to service-connected disabilities is
granted, subject to the laws and regulations governing the
payment of monetary benefits.
____________________________________________
S. L. Kennedy
Veterans Law Judge, Board of Veterans' Appeals
Department of Veterans Affairs